ITO, Ajmer V. SHRI SUMATI CHAND BOHRA, Ajmer

ITA 559/JPR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62024 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 1998-1999
• Appeal Filed On: 06-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K L MOOLCHANDAN I
• Assessee Lawyers: VINOD JOHRI
• Keywords: Search and seizure
• Section: 143(3); 147; 148

Judgement Text

ITA 559-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : B JAIPUR. BEFORE SHRI R.K. GUPTA AND SHRI SANJAY ARORA ITA NOS.. 559 & 560/JP/2011 ASSTT. YEARS : 1998-99 & 1999-2000 PAN : ABOPB 1194 M THE ITO VS. SHRI SUMIT CHAND BOHRA WARD- 1(2) PUSHKAR ROAD AJMER AJMER (APPELLANT) (RESPONDENT) RESPONDENT BY : SHRI VINOD JOHRI APPELLANT BY : SHRI K.L. MOOLCHANDANI DATE OF HEARING : 11.04.2012 DATE OF PRONOUNCEMENT : 25.05.2012. ORDER DATE OF ORDER : 25/05/2012. PER R.K. GUPTA, J.M. THESE ARE THE APPEALS BY REVENUE AGAINST TWO DIFFE RENT ORDERS OF LD. CIT (A), AJMER DATED 30-03-2011 RELATING TO ASSESSMENT YEARS 1998-98 AND 1999-2000. 2.1 SIMILAR ISSUES ARE INVOLVED IN THE APPEALS OF T HE DEPARTMENT. THE DEPARTMENT IS AGITATING AS TO DELETION OF ADDITION OF RS. 56.00 L ACS EACH FOR BOTH THE ASSESSMENT YEARS MADE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESS EE BY THE AO. 2.2 THE FACTS IN THIS CASE AS NOTED BY LD.CIT(A) AR E THAT THE ASSESSEE WAS THE BRANCH MANGER IN AJMER BRANCH OF ORIENTAL BANK OF COMMERCE DURING THE RELEVANT YEAR. RETURN DECLARING TAXABLE INCOME OF RS. 1,38,540/- WAS FILE D. ASSESSMENT U/S 143(3) OF THE ACT READ WITH SECTION 147 WAS MADE IN HIS CASE ON 28-01-2001, IN WHICH TOTAL INCOME WAS DETERMINED AT RS. 1,72,22,050/- ON PROTECTIVE BASIS . THE ADDITION WAS DELETED BY THE LD. CIT(A). THE ISSUE WAS RESTORED TO THE FILE OF THE A O BY ITAT. PURSUANT TO THESE DIRECTIONS OF THE ITAT, THE AO COMPLETED THE ASSESS MENT ON 24-12-2009 IN WHICH ADDITION OF RS. 56.00 LACS WAS MADE (ON PROTECTIVE BASIS) ON ACCOUNT OF DEPOSITS IN VARIOUS BOGUS / BENAMI/ FICTITIOUS ACCOUNTS. FURTHE R THE FACTS OF THE CASE ARE THAT A SEARCH WAS CONDUCTED ON 22-7-1998 BY CBI, JAIPUR IN THE CA SE OF SHRI SUMATI CHAND BOHRA, THE THEN BRANCH MANAGER OF ORIENTAL BANK OF COMMERCE (O BC), AT RESIDENTIAL PREMISES AT CINEMA ROAD BRANCH, AJMER. THE CBI ALSO RAIDED THE BANK BRANCH AND FOUND THAT IN THE SAID BANK BRANCH VARIOUS CASH AMOUNTS WERE DEPOSITE D IN DIFFERENT BANK ACCOUNTS IN THE NAME OF VARIOUS PERSONS FROM WHICH FDRS WERE ALSO P URCHASED IN DIFFERENT NAMES AND THE SAME WAS SUBSEQUENTLY EN-CASHED BY SH. BOHRA TH ROUGH FORGED SIGNATURES OF ACCOUNT HOLDERS OR THROUGH BENAMI ACCOUNT HOLDERS. SOME OF THOSE ACCOUNTS WERE FICTITIOUS NAMES OF NON EXISTING PERSONS WHICH WERE OPENED BY SH. BO HRA AS THE BRANCH MANAGER. SOME OTHER ACCOUNTS WERE OF BENAMI NATURE, I.E. OF EXIST ING PERSONS BUT THE DEPOSITS/WITHDRAWALS IN THESE ACCOUNTS WERE APPAREN TLY MADE BY OTHER PERSONS. ACCORDINGLY THE AO MADE ADDITION OF RS. 56.00 LACS IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AND SUBSTANTIVE ADDITIONS WERE MAD E IN THE HANDS OF SHRI K.G. NUWAL, SHRI K.K. MAHESHWARI AND SHRI CHAINSUKH RATHI AT RS . 18,66,667/- EACH RESPECTIVELY. SIMILAR ADDITION OF RS. 56.00 LACS WAS MADE FOR THE ASSESSMENT YEAR 1999-2000. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO OBSERVED THAT THE IMPUGNED ADDITIONS WERE ALREADY CONFIRMED BY HIM IN THE NAME OF THREE PERSONS. THEREFORE, THE PROTECTIVE ADDITION WAS DELETED BY THE LD. CIT(A) F OR BOTH THE ASSESSMENT YEARS. 2.3 NOW THE DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL . 2.4 THE LD. DR PLACED RELIANCE ON THE ORDERS OF THE AO. 2.5 ON THE OTHER HAND, THE COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDERS OF THE LD. CIT(A). RELIANCE WAS ALSO PLACED ON THE WRITTEN SUBMISSION PLACE ON RECORD. IT WAS FURTHER SUBMITTED THAT EVEN THE C.B.I. COURT HAS EX ONERATED THE ASSESSEE. THE ATTENTION OF THE BENCH WAS DRAWN TO THE JUDGMENT OF C.B.I. COURT AND THE COPY OF WHICH IS PLACED AT PAGES 26 TO 61 OF THE ASSESSEE'S PAPER BOOK. 2.6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD. WE FIND THAT BOTH THE APPEALS OF THE DEPARTMENT ARE LIABLE TO BE SET-ASIDE TO THE FILE OF THE CIT(A). IT IS SEEN THAT APPEALS OF THE ASSESSEE WERE DECIDE D OF THE CIT(A) EX-PARTE. EXCEPT MENTIONING THAT THERE WAS NO COMPLIANCE FROM THE AS SESSEE THEREFORE THE APPEAL ARE BEING DECIDED ON THE BASIS OF MATERIAL ON RECORD THE APPE ALS HAVE BEEN DECIDED. NOTHING IS BORNOUT FROM THE ORDER OF CIT(A) THAT ANY NOTICES W AS SERVED ON THE ASSESSEE OR NOT. IT IS FURTHER SEEN THAT EVEN FACTS ARE NOT CORRECTLY INCO RPORATED IN THE ORDER OF THE CIT(A). LD.CIT(A) IN PARA 3 HAS OBSERVED AS UNDER :- 3.0 THE APPELLANT WAS BRANCH MANAGER IN AJMER BRA NCH OF ORIENTAL BANK OF COMMERCE DURING THE RELEVANT YEAR. RETURN D ECLARING TAXABLE INCOME OF RS.1,38,540/- WAS FILED. ASSESSMENT U/S 1 43(3) READ WITH SECTION 147 WAS MADE IN HIS CASE ON 28.01.2001, IN WHICH TO TAL INCOME WAS DETERMINED AT RS.1,72,22,050/- ON PROTECTIVE BASIS. THE ADDITION WAS DELETED BY CIT(A). THE ISSUE WAS RESTORED TO THE FI LE OF AO BY HONBLE ITAT. PURSUANT TO THESE DIRECTIONS OF ITAT. AO COMP LETED ASSESSMENT ON 24.12.2009 IN WHICH ADDITION OF RS.56,00,000/- WAS MADE (ON PROTECTIVE BASIS) ON ACCOUNT OF DEPOSITS IN VARIOUS BOGUS/BENA MI/FICTITIOUS ACCOUNTS. 2.7 WHEREAS FACTS ARE OTHERWISE WHICH ARE RECORDED BY THE A.O. IN FACT ORIGINALLY THE A.O. MADE ADDITION OF RS.1,72,22,050/- ON PROTECTIV E BASIS ON ACCOUNT OF DEPOSITS IN BOGUS BENAMI FICTITIOUS AMOUNT IN ORIENTAL BANK OF COMMERCE WHICH INCLUDES AND ADDITION OF RS.4,97,578/- ON ACCOUNT OF COMMISSION EARNED. ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO DELETED BOTH THE ADDITION I.E. ON ACCOUNT OF FICTITIOUS DEPOSITS AT RS.1,65,85,930/- AND RS.4,97,578/- ON ACCOUNT OF CO MMISSION TOTALING RS.1,72,22,050/-. DEPARTMENT HAS NOT FILED ANY APPEAL BEFORE TRIBUNA L IN RESPECT TO ADDITION DELETED OF RS.1,65,85,930/-. HOWEVER DEPARTMENT FILED APPEAL I N RESPECT TO COMMISSION OF RS.4,97,578/- DELETED BY CIT(A). THIS ADDITION WAS ALSO DELETED BY TRIBUNAL. THE ADDITION ON SUBSTANTIVE BASIS WAS MADE IN CASE OF GUTKHA GROUP ALONGWITH IN THE NAME OF ACCOUNT HOLDER. THE TRIBUNAL SET-ASI DE THE ORDER OF CIT(A) IN CASE OF GUTKHA GROUP WHERE LD.CIT(A) HAD DELETED THE ADDITI ON. THERE AFTER NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 29.12.2008. AGAIN ASSESSM ENT U/S 143(3)/148 WERE COMPLETED AND AN ADDITION OF RS.56 LACS EACH FOR ASSESSMENT Y EAR 1998-99 AND 1999-00 WAS MADE. AS STATED ABOVE LD.CIT(A) DELETED THESE ADDITIONS F OR BOTH OF THE YEAR BY OBSERVING THAT SUBSTANTIVE ADDITION IN CASE OF GUTKHA GROUP HAVE B EEN SUSTAINED BY HIM. IN VIEW OF THE ABOVE CIRCUMSTANCES IT IS CLEARLY ESTABLISHED THAT LD.CIT(A) HAS NOT IN CORPORATED FULL FACTS IN HIS ORDER. NEITHER ANY FINDING HAVE BEEN GIVEN ON MERIT NOR THE ISSUE THAT HOW SECOND NOTICE U/S 148 IS VALID BEEN EXAMINED WHEREA S ASSESSEE HAS OBJECTED THAT NO ADDITION CAN BE MADE ON PROTECTIVE BASIS IN PROCEED ING INITIATED U/S 148. THE A.O. HAS PASSED A VERY DETAILED ORDER AFTER INCORPORATING DE TAILED FACTS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES WE AR E OF THE CONSIDERED VIEW THAT MATTER SHOULD BE SENT BACK TO THE FILE OF THE LD.CI T(A) FOR DECIDING THE APPEALS OF ASSESSEE AFRESH AFTER AFFORDING REASONABLE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY WE SET-ASIDE OF THE ORDER OF THE LD.CIT (A) FOR BOTH OF THE YEARS AND REMAND THE MATTER BACK TO HIS FILE TO PASS A FRESH ORDER O N MERIT. 2.8 IN THE RESULT, THE APPEALS OF THE REVENUE ARE A LLOWED FOR STATISTICAL PURPOSE. 2.9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 5.05.2012. SD/- SD/- ( SANJAY ARORA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, *BASANT* COPY FORWARDED TO :- THE ITO , WARD- 1 (2), AJMER SHRI SUMATI CHAND BOHRA, AJMER THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NOS. 559 & 560/JP/2011) BY ORDER , AR ITAT JAIPUR.